1

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 “If entitled to extra pay at the rate due grade above that actually held by him un- a second lieutenant, mounted, the amount der § 7 of the act of Congress approved due is $125. April 26, 1898, he must be assigned in orders If entitled to extra pay, and not entitled issued by competent authority to a com- to retain the pay of a captain as stated in mand appropriate to such higher grade of finding 3, there should be deducted from the troops operating against the enemy.” Circ. extra pay allowed the sum of $79.44. No. 39, A. G. O., Sept. 27, 1898.

At the time that he assumed, and during The court rendered judgment for the the time that he exercised, command of claimant in the sum of $166.66. 41 Ct. troop E, he was the senior officer present Cl. 36. with the troop.

The Treasury Department, from the de. Assistant Attorney General Van Orsdel cision of the Comptroller of March 31, 1899 and George M. Anderson for appellant. (5 Comp. Dec. 641), to the decision of the Messrs. George A. King, William B. King, court in Humphreys v. United States, 38 Ct. and Clark McKercher for appellee. Cl. 689, on May 25, 1903 (pp. 15–16), recognized this sort of orders, so subsequently Mr. Chief Justice Fuller delivered the confirmed, as sufficient authority for the opinion of the court: higher pay. Under similar orders, subse- It is conceded by the government that quently affirmed, all officers were paid either claimant is entitled to extra pay, so that by the Pay Department or by the Treasury the question is to what amount. Was he Department in claims presented after the entitled to receive one month's extra pay war.

of a captain of cavalry, mounted ($166.66), 3. From August 26, 1898, to October 19, or one month's extra pay of a second lieu1898, claimant was originally paid the rate tenant of cavalry, mounted ($125) ? due a second lieutenant of cavalry, and We lay out of view the suggestion that if from October 20 to October 23, 1898, he orig. claimant were entitled to the extra pay of inally received the pay of a first lieutenant a second lieutenant of cavalry only, then of cavalry. He subsequently filed a claim that a certain sum or sums ought to be for additional pay for command of the troop deducted as having been previously improvi. and was paid by the auditor for the War dently paid by the auditor for the War DeDepartment, October 30, 1899, the pay of a partment. The United States filed no setcaptain for the entire period from August off or counterclaim, and we think we can26, 1898, to October 23, 1898.

not overhaul the allowance by the auditor 4. On the 14th day of September, 1898, a for the War Department in the circumfurlough of thirty days for said regiment stances. Such payment, if made in error, was authorized under General Orders No. did not determine the question before us 130, A. G. O., 1898, and amendatory circu- within t'nited States v. Hite, 204 U. S. 343, lars. The above-named claimant did not 51 L. ed. 514, 27 Sup. Ct. Rep. 386. receive such furlough. From the beginning

The claim is made under 7 of the act of the furlough to September 26, 1898, the of April 26, 1898 (30 Stat. at L. 364, 365, said claimant was sick in Mount Carmel chap. 191, U. S. Comp. Stat. 1901, p. 895), Hospital, Columbus, Ohio. From Septem- reading as follows: “That in time of war ber 26, 1898, to the end of the furlough pe every officer serving with troops operating riod he was detained for duty and actually against an enemy who shall exercise, under performed duty. During the whole furlough assignment in orders issued by competent period he was at all times subject to the authority, a command above that pertaining orders of his superior officers until final mus- to his grade, shall be entitled to receive the ter out. Claimant was first taken sick at pay and allowances of the grade appropriHuntsville, Alabama, before the furlough, ate to the command so exercised.” but accompanied his regiment to the home The main question is whether claimant station at Columbus, Ohio, where he was exercised, "under assignment in orders isplaced in the hospital by officers of said reg. sued by competent authority, a command iment, the surgeon being absent. While at above that pertaining to his grade?” When the hospital claimant performed some mili- he assumed cominand of his company, Autary service by directing a clerk employed gust 26, 1898, he was the senior officer presby him for that purpose.

ent, the captain and the first lieutenant 5. If claimant is entitled to retain the pay being absent. Section 253 of the Army Reg. already received by him, the amount due ulations 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

PORTO RICO, Piff. in Err., next in rank who is serving with it, unless otherwise specially directed.”

JULIO P. CASTRO. This embodied the rule of succession by Error to district court of Porto Rico-friv. seniority prevailing in the ordinary course

olousness of Federal question. of military affairs, while, at the same time,

The contention that, because the dis. it recognized that there might be excep-trict court of the United States for the distions, in respect of which special direction trict of Porto Rico is required, by the act was required, and § 7 of the act of April of April 12, 1900 (31 Stat. at L. 77, chap. 26, 1898, applied to such cases.

191), § 34, to proceed in the same manner The exceptions spring from necessity, and as a Federal circuit court, a term of that where it is apparent that that does not ex. I ty of the further provision of that section

court held at Mayaguez, under the authoriist, orders relied on as the basis for in that regular terms of such court shall be creased pay under & 7 are ineffectual for held at stated times in San Juan and Ponce, that purpose.

and special terms at Mayaguez at such other In Humphreys v. United States, 38 Ct. Cl. times as the judge may deem expedient, is 689, the court of claims held that what the a “special," as contradistinguished from a law contemplated was "necessary, and not "regular,” term, within the meaning of U. gratuitous, assignments, and only such as S. Rev. Stat. $ 670, U. S. Comp. Stat. 1901, would be for the good of the service for the p. 545, forbidding jury trials at special terms vigorous prosecution of the war.” Chief

of the circuit courts, except in certain speci.

fied districts, is too clearly lacking in merit Justice Nott, speaking for the court, said: to sustain a writ of error from the Federal "It seems to the court incontrovertible that Supreme Court, in view of the substantially the words 'under assignment in orders is- uniform requirement of U. S. Rev. Stat. 88 sued by competent authority' constitute the 664-669, U. S. Comp. Stat. 1301, pp. 543-545, controlling limitation of the statute; and that special terms of the circuit courts are the limitation implies that the benefits of to be held where the regular sessions are

held. the statute extend only to cases where such

[No. 151.] an order is necessary to impose the burden of the higher command upon an officer.” Argued and submitted January 14, 1907. We concur in that view, and, tested by it,

Decided February 25, 1907. Special Orders No. 44, dated August 24, 1898, whereby the lieutenant colonel of the First I 'United States for the District of Porto

N of Ohio Volunteer Cavalry announced that First Lieutenant Forsyth was relieved of Rico to review a judgment for plaintiff in the command of troop E, and, as incident an action against a railway company to rethereto, that Second Lieutenant Mitchell cover damages for the alleged negligent killwas appointed to the command, cannot being of plaintiff's daughter at a highway considered as an "assignment in orders is-crossing. Dismissed for want of jurisdic. sued by competent authority," within $ 7.

tion. That section was not enacted to give increased pay for the discharge of the ordi.

Statement by Mr. Justice White:

Julio P. Castro, defendant in error, was nary duties of the service, but to give compensation for the greater risk and responsi- plaintiff in the court below, and the plain

tiff in error, the American Railroad Combility of active military command, and no assignment in orders when unnecessary to pany, a New York corporation doing busi

ness 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 The attempted confirmation by Special railroad of the defendant, at a point where Orders No. 97 must fail of effect under sit intersected a public highway leading from 7 for like reasons.

the town of San German to the town of Other questions argued at the bar need Mayaguez. not be discussed.

A demurrer to the complaint was filed, Judgment reversed and cause remanded, and also the following plea to the jurisdicwith a direction to enter judgment in favor tion of the court of claimant for $125.

"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 pro- Serralles v. Esbri, 200 U. S. 103, 50 L. ed. visions of $ 670 of the Revised Statutes of 391, 26 Sup. Ct. Rep. 176; Rodriguez v. the United States (U. S. Comp. Stat. 1901, United States, 198 U. S. 156, 49 L. ed. 994, p. 545), for the reason that all terms of 25 Sup. Ct. Rep. 617; Crowley v. United this court held in the city of Mayaguez, un- States, 194 U. S. 466, 48 L. ed. 1078, 24 Sup. der and by virtue of the terms and provi- Ct. Rep. 731. sions of the act of April 12, 1900 [31 Stat. It is undoubted that the plea to the ju. at. L. 77, chap. 191], creating a civil gov- risdiction filed and insisted upon below asernment in Porto Rico, and particularly the serted on the record a right under an act present term, at which the above cause is of Congress, which right was denied. But, set for trial, is a special term of this court, in harmony with the rule which governs and, therefore, this court is without juris- where a right under the Constitution, etc., diction to try the issues in this cause by a of the United States is asserted in a case jury.

which is brought to this court from a state "Wherefore, defendant prays for an order court, and in accord with the same rule either dismissing this cause or transferring which also governs cases originally brought the same for trial at a regular term of this in a court of the United States (New Or. court to be held at either San Juan orleans Waterworks Co. v. Louisiana, 185 U. Ponce."

S. 336, 46 L. ed. 936, 22 Sup. Ct. Rep. 691, After the entry of an order overruling the and cases cited; Newburyport Water Co. v. demurrer and the plea to jurisdiction, an Newburyport, 193 U. S. 561, 48 L. ed. 795, answer was filed and the case was tried by 24 Sup. Ct. Rep. 553), we are of opinion a jury. A verdict was rendered in favor of that the mere assertion of a Federal right the plaintiff for the sum of $1,600. The ob- and its denial do not justify our assuming jection to jurisdiction was renewed in a mo- jurisdiction where it indubitably appears tion to arrest the judgment, and, after the that the Federal right asserted is frivo. overruling thereof, a bill of exceptions was lous, that is, without color or merit. We settled by the trial judge, containing excep- think the case at bar is of this character. tions taken during the trial to the admis- As appears in the Revised Statutes, it sion and rejection of evidence and to in- has been the uniform practice of Congress structions given and refused. The case was

to fix both the time and place for holding then brought to this court.

sessions of the district and circuit courts of

the United States, which, for convenience of Messrs. Frederic D. McKenney, Francis expression, have been styled the regular H. Dexter, and John Spalding Flannery for terms of court. Rev. Stat. $$ 572, 658, U. plaintiff in error.

S. Comp. Stat. 1901, pp. 464, 530. Upon the Mr. Frederick L. Cornwell for defendant district judge has also been conferred the in error.

power of designating the time and place of

holding special terms of the district court, Mr. Justice White, after making the fore in which any business might be transacted going statement, delivered the opinion of which might be disposed of at a regular the court:

term. Id. § 581, U. S. Comp. Stat. 1901, By the act of April 12, 1900 (31 Stat. p. 477. The asserted application to the disat L. 85, chap. 191), the general rule govern. trict court of Porto Rico of the provision as ing the right of this court to review by to special terms of the circuit courts is that writs of error or appeal final decisions of upon which was rested the claim of statuthe district court of the United States for tory right to exemption from a trial of the Porto Rico was made as to amount to con.

causc by jury at Mayaguez, which was deform to that obtaining as to the territories nied by the court below, and forms the baof the United States, viz., $5,000. As this sis for the contention that this court must case does not involve the requisite juris. exercise jurisdiction to pass upon the as. dictional amount, it follows that the right signed errors. The section reads as fol. of review does not exist unless the case is lows: within the provision of the statute confer- "Sec. 670. At any special term of a cir

a . ring jurisdiction to review in this court “in cuit court in any district in Indiana, Ken. all cases where . an act of Con- tucky, Missouri, North Carolina, Virginia, gress is brought in question and the right and Wisconsin any business may be transclaimed thereunder is denied."

acted which might be transacted at any reg. It has been settled that where, in the ular term of such court. At any special course of litigation pending in the court term of a circuit court in any other disjust referred to, a party asserts a right trict it shall be competent for the court to under an act of Congress, the act “is brought 'entertain jurisdiction of, and to hear and

decide, all cases in equity, cases in error On the face of this provision it is apor on appeal, issues of law, motions in ar- parent that it was the intention of Congress rest of judgment, motions for a new trial, to authorize the holding of sessions of the and all other motions, and to award execu- court at Mayaguez at times to be specially tions and other final process, and to do and designated by the district judge. It cannot transact all other business and direct all be said that the word “special” in the act other proceedings in all causes pending in was intended to affis to the terms authorthe circuit court, except trying any cause ized by Congress to be held at Mayaguez by a jury, in the same way and with the the character of special terms, as contrasame effect as the same might be done at distinguished from regular terms, within any regular session of said court."

the purview of Rev. Stat. § 670, without reThe application of this section, it is conducing the statute to an absurdity, for untended, results from the concluding words less the act authorized the holding of of the following portion of g 34 of the act of regular terms at Mayaguez it would be imApril 12, 1900.

possible to conceive of the holding of special "The district court of the United States terms at that place in the sense of Rev. for Porto Rico ... shall have, in ad- Stat. § 670. What the provision in quesdition to the ordinary jurisdiction of district tion plainly meant was that regular terms courts of the United States, jurisdiction of should be held at Ponce and San Juan at all cases cognizant in the circuit courts of the times fixed by Congress in the statute the United States, and shall proceed there and that the same character of term might in in the same manner as a circuit court.” be held at Mayaguez at a time to be special.

Rev. Stat. $ 670 is to be interpreted in the ly designated by the district judge. light of § 669 (U. S. Comp. Stat. 1901, p. Dismissed for want of jurisdiction. 545), reading as follows:

“Section 669. In the districts not mentioned in the five preceding sections [California, Oregon, Nevada, Kentucky, Indiana, AMERICAN RAILROAD COMPANY OF Tennessee, North Carolina, Virginia, and

PORTO RICO, Piff. in Err., Wisconsin being the districts mentioned]

V. the presiding judge of any circuit court FELICIA CARDONA DE CASTRO and Julio may appoint special sessions thereof, to be

Castro, Her Husband. held at the places where the regular sessions are held.”

This case is governed by the decision in

American Railroad Company v. Castro, ante, Keeping in mind that the substantially uniform rule stated in Rev. Stat. 88 664 to

[No. 467.] 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

ary 25, 1907. sessions are authorized to be held, it fol. lows that a special term of a circuit court IN

N ERRUR to the District Court of the of the United States, as the expression is

United States for the District of Porto employed in Rev. Stat. § 670, is a session Rico to review a judgment for pl tiffs in ordered for the disposal of business, supple- an action brought by husband and wife mentary to a regular term, and to be held against a railroad company to recover damat the place fixed by Congress for holding ages for personal injuries sustained by the such regular term. When the plain result wife at a highway crossing. Dismissed for of the legislation just referred to is noted

want of jurisdiction. it is apparent that there is no color what

Messrs. Frederic D. McKenney, Francis H. ever for the pretension that Rev. Stat. & Dexter, and John Spalding Flannery for 670 had any possible application to the plaintiff in error. term at which this case was tried. That

No appearance for defendants in error. term was held under authority conferred by that portion of g 34 of the act of April 12,

Mr. Justice White delivered the opinion

of the court: 1900, where, referring to the district court of Porto Rico, it was provided:

This case is similar in character to that “Regular terms of said court shall be held of American R. Co. v. Castro, No. 151, this in San Juan, commencing on the second term, just decided [204 U. S. 453, ante, 466, Monday in April and October of each year, 27 Sup. Ct. Rep. 466], having been brought to and also at Ponce on the second Monday in recover for damages resulting from injuries January of each year, and special terms sustained by the wife in the same accident may be held at Mayaguez at such other which occasioned the death of the daughter, stated times as said judge may deem ex- Eloisa. The right of this court in the case pedient."

at bar to review a judgment for the plain

P. 466.

tiffs below, entered upon the verdict of a ¡Court, which had affirmed a judgment of jury, is based upon an objection to the the Trial Term of that court, held in and jurisdiction of the trial court, similar to for the county of Monroe, dismissing the that which was made in No. 151. For the complaint in an action by a municipal reasons stated in the opinion in that case corporation to recover from a street railthe writ of error in this case must also be way company a portion of the expense of dismissed.

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, Piff. Court of Appeals, 182 N. Y. 99, 70 L. R. A. in Err.,

773, 74 N. E. 953.
V.
CITY OF ROCHESTER.

Statement by Mr. Justice Moody:

The defendant in error brought an action Corporations—consolidation of street rail

ways-effect on contract excmption from against the plaintiff in error, a street surpaving obligations.

face railroad corporation, hereinafter called 1. A contract exemption of a street rail. the Rochester Railroad, to recover $18,way company from paving obligations is 274.02, the expense of making new pavenot a “privilege” within the meaning of N. Jments of two streets within the space beY. Laws 1867, chap. 254, as amended by tween the tracks, the rails of the tracks, Laws 1879, chap. 503, empowering a railway and 2 feet in width outside the tracks of company, being the lessee of the property of the railroad. The action was brought another railway company, to acquire the under § 98 of chapter 39 of the General whole of the latter's capital stock, in which Laws of New York, which was enacted in case its "estate, property, rights, privileges, and franchises” shall vest in and be held 1890, and is as follows: and enjoyed by the purchasing corporation

Every street surface railroad corporation, "fully and entirely, and without change or so long as it shall continue to use any of dininution.”

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 prede- keep in permanent repair that portion of cessor in title.

such street, avenue, or public place between 2. A street railway company incorpo- its tracks, the rails of its tracks, and 2 feet rated under N. Y. Laws 1884, chap. 252, in width outside of its tracks, under the which imposed upon it the duty of paving supervision of the proper local authorities, a portion of the street, cannot claim the and whenever required by them to do so, benefit of a contract exemption from paving and in such manner as they may prescribe. obligations enjoyed by a predecessor in title.

In case of the neglect of any such corporaCorporations—dissolution-sale of capital tion to make pavements or repairs after the stock.

expiration of thirty days' notice to do so 3. A street railway company whose the local authorities may make the same capital stock has been wholly acquired by a at the expense of such corporation. lessee corporation, pursuant to N. Y. Laws The Rochester Railroad was incorporated 1867, chap. 254, which, as amended by Laws on February 25, 1890, under a law of New 1879, chap. 503, provides that in such case York enacted May 6, 1884. New York the estate, property, rights, privileges, and laws 1884, chap. 252. That law authorfranchises of the selling corporation shall vest in the purchasing corporation, to be ized the formation of street surface railroad thereafter controlled by the latter in its corporations and provided that they should own name, cannot be regarded as still hav. "have all the powers and privileges granted, ing a corporate existence which will enable and be subject to all the liabilities imposed, the purchasing corporation to claim and en by this act.” Among the liabilities was joy, on behalf of the selling corporation, a that imposed by § 9 of the act, which is as contract exemption from paving obligations follows: which the latter corporation enjoyed.

“Every such corporation incorporated

under, or constructing, extending, or oper[No. 156.]

ating a railroad constructed or extended Argued January 14, 15, 1907. Decided under, the provisions of this act, within the March 25, 1907.

incorporated cities and villages of this state,

shall also, whenever and as required, and IN N ERROR to the Supreme Court of the under the supervision of the proper local

State of New York to review a judgment authorities, have and keep in permanent reentered pursuant to the mandate of the pair the portion of every street and avenue Court of Appeals of that State, which re- between its tracks, the rails of its tracks, versed a judgment of the Appellate Di- and a space of 2 feet in width outside and vision, Fourth Department of the Supreme 'adjoining the outside rails of its track or