Army and Navy-pay of rear admiral-stat-tenant utes-general and special provisions-de- tenants, and not more duction while on shore duty.

mirals "embraced in the nine lower numbers | provisions of other sections of this statute, of that grade." He served on shore from or of any other statute, limit or qualify the March 3, 1899, to February 13, 1901, and right of the nine junior rear admirals to for the rest of the time at sea. While at the full pay given by statute to a brigadier sea he received the same pay as was allowed general. On the other hand, the governa brigadier general in the Army," and while ment contends that the proviso is subject on shore he received pay at the same rate to the general rule which obtains in respect less 15 per cent, together with commuta- to all other naval officers, of a 15 per cent tion in lieu of allowance of quarters. Judg-difference between the pay when on shore ment was rendered in favor of the United duty and that when at sea. Again, the States (36 Ct. Cl. 266), from which judg- claimant insists that by § 13, after the 30th ment the claimant took this appeal. day of June, 1899, all rear admirals became entitled to the pay and allowances of major generals in the army, and that the proviso in § 7, in respect to the nine junior rear admirals, was temporary in its nature, and expired on the 30th of June, 1899; while the government contends that the distinction between the nine senior and the nine junior rear admirals is a permanent pro

Messrs. James H. Hayden and Joseph
K. McCammon for appellant.
Assistant Attorney General Pradt and
Mr. John Q. Thompson for appellee.

Mr. Justice Brewer delivered the opin

ion of the court:

This case involves a mere question of statutory construction. The matter of military and naval salaries is one exclusively within the control of Congress. The courts may neither increase nor decrease them, correct any supposed inequalities, nor in any manner set aside or modify the action of the legislative branch of the government in respect thereto. If there be inequality, injustice, it can be corrected alone by Congress, and the courts may not interfere.

The primary rule of statutory construction is, of course, to give effect to the intention of the legislature. Whenever that is apparent it dominates and interprets the language used. But when the intent is a debatable question, and there is nothing on the face of the statute which clearly indicates such intent, there are certain minor and subsidiary rules by which courts are guided in determining the true construction. In the case at bar neither the words of

the statute nor the circumstances and con

ditions of this legislation make perfectly clear the intent of Congress. If we look alone upon § 13, we may well conclude that Congress had one thought in its mind, while if we turn to § 7 another and somewhat different intent is apparent. Section 13 sug: gests a complete parallel in the matter of pay between all the officers of the Navy and those of the Army according to their several ranks. Section 7, on the other hand, points to a special exception in respect to one half the officers of a certain rank in the Navy. The ingenious and plausible arguments made by counsel on the respective sides clearly show that it is a debatable question whether Congress intended that after the 1st of July, 1899, there should be only one uniform rule controlling the pay of all the respective officers of the Army and the Navy, or whether as to one half of the rear admirals a different rule was contemplated. Under those circumstances of doubt we turn to other rules of statutory construction.

Before noticing them it is well to understand exactly the contentions of the parties. The claimant insists that the first proviso in § 7 establishes a complete but temporary rule for the payment of the nine lower members of the grade of rear admiral; that no

30th of June, 1899.
vision, and did not cease to have force on the

that a later statute, general in its terms and
It is a canon of statutory construction
not expressly repealing a prior special stat
ute, will ordinarily not affect the special
provisions of such earlier statute. In other
words, where there are two statutes, the
earlier special and the later general, the
terms of the general broad enough to in-
clude the matter provided for in the special,
other is general creates a presumption that
-the fact that the one is special and the,
the special is to be considered as remaining*
will not be understood as repealing the spe-
an exception to the general, and the general
cial, unless a repeal is expressly named, or
unless the provisions of the general are man-
ifestly inconsistent with those of the special.
In Ex parte Crow Dog, 109 U. S. 556, 570,
sub nom. Re Kang-Gi-Shun-Ca, 27 L. ed.
1030, 1035, 3 Sup. Ct. Rep. 396, 405, this

court said:

and express; the words relied on as a repeal "The language of the exception is special are general and inconclusive. The rule is generalia specialibus non derogant. "The general principle to be applied,' said Bovill, Ch. J., in Thorpe v. Adams, L. R. 6 C. P. 135, to the construction of acts of Parliament, is that a general act is not to be conunless there is some express reference to the strued to repeal a previous particular act, previous legislation on the subject, or unless there is a necessary inconsistency in the two acts standing together.' And the reason is,' said Wood, V. C., in Fitzgerald

Chumpenys, 30 L. J. Ch. N. S. 782, 2 Johns. & H. 31-54, 'that the legislature having had its attention directed to a special subject, and having observed all the circumstances of the case and provided for them, does not intend by a general enactment afterwards to derogate from its own act when it makes no special mention of its intention so to do.'"

In Black on Interpretation of Laws, 116, the proposition is thus stated:

"As a corollary from the doctrine that implied repeals are not favored, it has come to be an established rule in the construction of statutes that a subsequent act, treating

all."

a subject in general terms and not expressly two may be obtained by limiting the operacontradicting the provisions of a prior spe- tion of the special provision to the period cial statute, is not to be considered as in-between the passage of the act and the 30th tended to affect the more particular and of June following. But that necessitates specific provisions of the earlier act, unless adding something to the words of the special it is absolutely necessary so to construe it provision, so that it shall read that from the in order to give its words any meaning at date of the act until the 30th of June following such should be the rule in respect to the salaries of the recently promoted commodores. But the same harmony can be obtained by adding to the general provision a clause like this: Except in respect to the nine lower numbers of the grade of rear admiral. In either case the harmony is secured by adding some words of qualification, and the rule, as we have seen, is to the effect that the additional words of qualification are to be put to the general provision rather than to the special.

So, in Sedgwick on the Construction of Statutory and Constitutional Law, the author observes, on page 98, with respect to this rule:

"The reason and philosophy of the rule is, that when the mind of the legislator has been turned to the details of a subject, and he has acted upon it, a subsequent statute in general terms or treating the subject in a general manner, and not expressly contradicting the original act, shall not be considered as intended to affect the more par- It is urged that the provision in § 7 was ticular or positive previous provisions, un-intended to merely fill out the present fiscal less it is absolutely necessary to give the latter act such a construction, in order that its words shall have any meaning at all."

And in Crane v. Reeder, 22 Mich. 322, 334, Mr. Justice Christiancy, speaking for the supreme court of that state, said:

"Where there are two acts or provisions, one of which is special and particular, and certainly includes the matter in question, and the other general, which, if standing alone, would include the same matter and thus conflict with the special act or provision, the special must be taken as intended to constitute an exception to the general act or provision, especially when such general and special acts or provisions are contemporaneous, as the legislature is not to be presumed to have intended a conflict."

Both the textbooks and the opinion just quoted cite many supporting authorities.

year, and that Congress meant by this legislation to start the new fiscal year, July 1, 1899, with one general rule of equality between the pay of officers of the Navy and that of officers of the Army. There might have been some force in this suggestion if the pay of the nine lower rear admirals had been continued through the balance of the year the same as it was at the date of the passage of the act. But all of them, whether commodores or captains, were by this special provision given an increase of pay. So Congress was not simply continuing salaries, but was making special provisions for the nine lower numbers of the grade of rear admirals, giving them an increase of pay over that which they had previously received.

Another matter worthy of notice is this: Prior to the act of March 3, 1899, the corresponding ranks of officers of the Navy and the Army were rear admiral and major genIn the light of this canon, how should eral, commodore, and brigadier general, capthese two sections be construed? Section 7 tain, and colonel. By that act the rank of in effect abolishes the rank of commodore, at commodore was abolished, although that of least so far as respects the active list of the brigadier general was undisturbed. No line of the Navy, and lifts those in that rank change was made in the relative rank of to that of rear admiral. The attention of captain and colonel, or of rear admiral and Congress was thus directed to such change major general, but the legislation left one and the proper accompanying provisions in rank in the Army to which there was no respect to salary and otherwise, and it de- corresponding rank in the Navy. The statclared that the lower nine rear admirals, ute in effect lifted the rank in the Navy they who were by the section lifted to that which was corresponding to that of brigadier rank, should receive a particular salary. general in the Army to that of rear admiral, Clearly that was a special provision in re- and corresponding with that of major genspect to a matter to which the attention of eral in the Army. The individuals thus Congress was at the time directed. If an- raised in rank were not so raised on acother statute had been passed at a subse- count of distinguished services or for any quent or on the same day making general personal reason, but simply in consequence provision for the salaries of naval officers, of the abolition of the official rank they had clearly the canon to which we have referred held. Is it unreasonable to believe that would apply. A fortiori, when the subse-Congress thought it unwise to give to those quent general provision is in the same stat-officers (who had neither by length of servute it should be held applicable. So, when in § 13 Congress prescribed a general rule for the salaries of naval officers, such general rule cannot, within the scope of this canon, be understood as repealing the special provision in the prior section, but the special provision must be taken as an exception to and limitation of the general rule. But it is said that harmony between the

ice or by personal distinction become entitled to the position of rear admiral, as it had stood in the past) all the benefits of such position? Would it be unnatural for Congress to bear in mind those who by length of service or by personal distinction had already earned the position, and provide that in, at least, the matter of pay there should be some recognition of the fact?

Again, is it unreasonable to believe that Con- Congress by that section carved out a salary gress intended that those officers whose past which in all respects ignored the general services placed them according to the prior rules pertaining to salaries of naval officers. relative rank side by side with brigadier It is rather to be believed that only the generals of the army, should not by a mere amount was fixed, and that otherwise it change of statute be given a benefit in sal- was to be in harmony with and subordinate ary which was not at the same time ac- to any and all general provisions. We are corded to brigadier generals in the Army? of opinion that the court of claims was right May not this explain its action in so divid- | in its conclusions in this respect. ing the rear admirals into two classes,— one composed substantially of former rear admirals, equal both in rank and pay with major generals in the Army, and the other of those who in the past were only commodores, to whom was given the rank of rear admirals, but the pay of brigadier generals in the Army?

Still another matter may be mentioned. The second proviso of § 7 reads:

"Provided, That when the office of chief of bureau is filled by an officer below the rank of rear admiral, said officer shall, while holding said office, have the rank of rear admiral and receive the same pay and allowance as are now allowed a brigadier general in the army."

It may be conceded that the questions we have been considering are not free from doubt, and much may be said in favor of the view opposed to that we have taken. Inasmuch as Congress has full control over the matter of salaries it can at any time appropriate to these officers such a sum as will make their salaries that which they contend~ was intended by the act of March 3, 1899. It is not a case in which the judicial decision must necessarily be a finality, but one in which there is full power on the part of Congress to correct any mistake which may have been made.

The judgment of the Court of Claims is affirmed.

Mr. Justice Gray took no part in the decision of this case.

(185 U. S. 65)

There is no similar clause in § 13. Why should Congress in § 7 make provision for the rank and pay of certain officers who during the ensuing four months might be charged with certain duties, and omit any such provision in prescribing salaries gen- VICKSBURG WATERWORKS COMPANY, erally and permanently? Is it not reasonable to believe that Congress intended this as a special provision which should continue after the 30th of June, 1899, and as a per- MAYOR AND ALDERMEN OF THE CITY manent rule for the cases named?

These considerations certainly tend to support the conclusion which follows from enforcing the well-recognized canon of construction in respect to special and general statutes. We think the court of claims was correct when it said:

"Section 13 is in general terms, and the language there used does not indicate that it was the intention of the Congress to abrogate the special provision made in § 7 for the rear admirals 'embraced in the nine lower numbers of that grade;' and special provision having been made for them it cannot be held that a subsequent general statute, much less in the same act, was intended to alter or repeal the special provision so made."

Appt.,

บ.

OF VICKSBURG.

Courts-jurisdiction of circuit court-case arising under Constitution and laws of the United States-cquitable relief against threatened injury.

1.

A case presented by a bill in equity which alleges that a contract right of a waterworks company with whose predecessors a municipality, with legislative sanction, contracted for a municipal water supply, is impaired by an ordinance directing that the waterworks company be notified that the city denies any liability on any contract for the use of hydrants, and by the subsequent action of the city in holding an election to authorize an issue of bonds to buy or construct waterworks of its own, and in refusing to pay the amount due and payable under the terms of the contract,-is one so arising under the laws and Constitution of the United States as to give a circuit court of the United States jurisdiction.

2. Apprehension that such illegal action may be taken by a municipality as will impair the franchise and contract rights of a waterworks company with whose predecessor the city has contracted for a municipal water supply entitles the company to maintain a suit for equitable relief in advance of any actual proceedings on the part of the city to impair the company's rights under the contract.

The further question is whether the provision in § 7, that the rear admirals embraced in the nine lower numbers of that grade should receive such pay and allowances as were given to brigadier generals, was intended to be absolute and exclusive, practically ignoring the general rule in respect to naval service of a difference between the pay of officers doing shore duty and that of those at sea? When there has been a long-established rule of difference in the compensation for the two kinds of services; when that rule is expressly recognized and continued in this same statute, as it is in § 13; when it is not in terms excluded in § 7,it would be going too far to hold it inapplicable to the salary provided for by § 7. Submitted December 4, 1901. Decided April In other words, it is not to be believed that

[No. 392.]

7, 1902.

99.

Statement by Mr. Justice Shiras: The Vicksburg Waterworks Company, a corporation of the state of Mississippi, filed, in February, 1901, in the circuit court of the United States for the southern district of Mississippi, a bill of complaint against the mayor and aldermen of the city of Vicks burg, a municipal corporation of Mississippi. To this bill the city filed a demurrer and certain special pleas, and subsequently moved the court for leave to withdraw the demurrer and pleas, and for leave to file an answer alleging that said answer embodied all the matters of defense which were set forth in said pleas and demurrer, and also a motion to dissolve a temporary injunction which had been theretofore granted. On July 1, 1901, the court entered the following order:

term of the supreme court to advance the appeal in this cause upon the docket of the Supreme Court of the United States, and upon the further condition that the injunetion bond heretofore given in this case shall stand and continue in force for any additional liability which may be incurred by reason of this order, the principal and sureties upon said bond, now in open court consenting thereto. Ordered, adjudged, and decreed this 3d July, 1901."

On the same day an appeal was allowed to this court, and on July 4, 1901, the following certificate was signed by the trial judge and filed:

"The final decree having been entered herein on the 3d day of July, 1901, dismissing this suit and the bill, and amended and supplemental bill therein, now, therefore, this court, in pursuance of the 2d paragraph of the 5th section of the act of Congress, approved March 3, 1891, and entitled 'An Act to Establish Circuit Courts of Appeal, and to Define and Regulate in Certain Cases the Jurisdiction of the Courts of the United "Coming on to be heard the motion to dis- States, and for Other Purposes,' hereby solve the injunction herein, and the defend-certifies to the Supreme Court of the United ant now having moved the court for leave to file the answer herewith presented and marked by the clerk as filed June 21, 1901, and to withdraw the pleas and demurrers filed April 30, 1901, it is ordered that leave be granted to file said answer and withdraw said pleas and demurrers, but that the question of the jurisdiction of this court to hear the matter in controversy, raised by said answer, shall be first presented and argued."

On July 3, 1901, the complainant moved the court to "require defendant to elect on which plea it will stand, whether on demurrer to the whole bill or on the answer.' This motion was overruled, and on July 3, 1901, the court entered the following order and decree:

"This cause coming on to be heard upon the motion to dissolve the injunction heretofore issued in this cause, and the court now being advised in the premises, and it appearing that there is no Federal question involved in the controversy presented by the pleading, it is therefore ordered, adjudged, and decreed that said injunction be, and the same is hereby, dissolved, and that the bill of the complainant be, and the same is hereby, dismissed, and that execution issue therefor for the cost in the case."

Thereupon the complainant moved the court to "continue the restraining order in force as granted until the appeal in this cause is heard by the Supreme Court of the United States, or until the further order is granted by said court."

The following order was then entered by the court:

"Upon the appeal being allowed herein it is ordered that the temporary restraining order herein be continued until the 1st day of January, 1902, or if before then, until the decision of the appeal herein by the supreme court, upon condition, however, that the complainant diligently prosecute its appeal and file a motion at or before the next

States for decision the question of the ju risdiction alone of this court over this cause, whether this cause presents a controversy which involves a Federal question under the laws or Constitution of the United States.

"The only question which I considered and decided in dismissing this suit and the bills of complaint is whether a Federal question was involved upon the pleadings."

Messrs. James A. Carr, S. 8. Hudson, and A. N. Edwards for appellant. Mr. L. W. Magruder for appellees.

Mr. Justice Shiras delivered the opinion of the court:

The sole question for our consideration is whether the bill, as originally filed and as amended, presented a Federal question. As the party plaintiff and the party defendant were both corporations and citizens of the same state, the circuit court of the United States could not take jurisdiction of the controversy between them unless the complainant laid grounds for that jurisdiction by asserting rights arising under the Constitution or laws of the United States, and such assertion must appear in the complainant's statement of its own claim. Metcalf v. Watertown, 128 U. S. 580, 32 L. ed. 543, 9 Sup. Ct. Rep. 173; Tennessee v. Union & Planters' Bank, 152 U. S. 454, 38 L. ed. 511, 14 Sup. Ct. Rep. 654; Blackburn v. Portland Gold Min. Co. 175 U. S. 571, 44 L. ed. 276, 20 Sup. Ct. Rep. 222.

It is true that the learned judge, in his certificate to this court, inquires "whether a Federal question was involved upon the pleadings." And it is also true that the counsel for the respective parties have gone, in their briefs, into a discussion of questions of fact and law, as if the case were here on appeal from a final decree on the merits.

But our function, in the case before us on this certificate, is restricted to the in