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quarters of the sea pay of the next higher class of pay shall be given those situated grade, in accordance with § 11 of the navy as the claimant is, leads us to consider the personnel act above quoted.

objects to be attained by the new law, the By § 1466 of the Revised Statutes of the circumstances under which it was enacted, United States (U. S. Comp. Stat. 1901, p. and to construe the language used in view of 1029), it is provided :

the purpose of Congress in enacting the stat“The relative rank between officers of the ute. Navy, whether on the active or retired list, There is no question that, had the claimand officers of the Army, shall be as follows, ant been promoted in the active service from lineal rank only being considered:

captain to rear admiral, he would have “The vice admiral shall rank with the passed into the lower grade of rear adlieutenant general.

mirals, so far, at least, as his pay was con“Rear admirals with major generals. cerned, and would have received, so * long “Commodores with brigadier generals. as within that number, the pay of a briga. “Captains with colonels.

dier general, notwithstanding that for all "Commanders with lieutenant colonels. other purposes he was entitled to the rank “Lieutenant commanders with majors. and privileges of a rear admiral. "Lieutenants with captains.

The appellant was promoted, and almost "Masters with first lieutenants.

immediately retired; when thus retired, "Ensigns with second lieutenants." having served during the Civil War, he was * Section 1261 (U. S. Comp. Stat. 1901, p. given the rank of the next higher grade and 893) fixes the pay of the officers of the three fourths of the sea pay of that grade. Army:

Congress had already created, for the pur. "The officers of the Army shall be entitled poses of pay, a division in the rank or grade to the pay herein stated after their respec. of rear admiral, with higher pay for those tive designations:

of higher number and lower pay for others "The general: thirteen thousand five hun- in the rank. It seems to us that it was dred dollars a year.

the object of Congress, when retiring an of"Lieutenant general: eleven thousand dol. ficer under the circumstances stated, that lars a year.

he should receive the pay of the next higher “Major general: seven thousand five hun- rank, and, but for the division made in the dred dollars a year.

pay of rear admirals, he would receive the “Brigadier general: five thousand five three quarters of the full pay of that rank; hundred dollars a year.

but, taking one step upward for the purpose “Colonel : three thousand five hundred of pay, he passes into, and not over, the dollars a year.”

next pay grade, which is that of the nine The claim of the appellant is, in sub- lower numbers. stance, that the pay of the next higher grade In regular gradation in the active servabove captain, the three quarters of which ice, a rear admiral, for the purposes of pay, the appellant is to receive, is the full pay of must first serve through the nine lower numa rear admiral,—that of a major general,-bers of the grade. So with a retiring offiand not what is claimed to be the exception- cer; it is the purpose to give him, as comal pay for the nine lower numbers of that pensation in the regular order of promotion, grade, who are to receive the pay and allow the pay of the “next higher grade.” This con. ance of a brigadier general.

clusion is in harmony with the decision of It is admitted in the discussion, that the this court in Rodgers v. United States (185 provision fixing the pay of the nine rear U. S. 83, 46 L. ed. 816, 22 Sup. Ct. Rep.582) admirals to correspond with the pay of a in which Mr. Justice Brewer, speaking for brigadier general arose from the fact that the court, said of this statute: the relative rank of officers of the Army “The individuals thus raised in rank were and Navy had been so adjusted by statute as not so raised on account of distinguished to rank commodores with brigadier generals, services or for any personal reason, but simand the rank of commodore being dropped ply in consequence of the abolition of the of. from the service, the pay of a brigadier ficial rank they had held. Is it unreason. general was given to the nine lower numbers able to believe that Congress thought it unof the rear admirals, who would otherwise wise to give to those officers (who had nei. have had the rank of commodores, with the ther by length of service or by personal discorresponding pay of brigadier generals. tinction become entitled to the position of

The argument for the appellant insists rear admiral, as it had stood in the past) all that the language is plain and so explicit the benefits of such position? Would it be as to need no construction; but the fact unnatural for Congress to bear in mind those that the rear admirals are divided into who, by length of service, or by personal two classes for the purposes of pay, and the distinction, had already earned the position, statute not specifically pointing out which' and provide that in, at least, the matter of pay, there should be some recognition of the officers retired under these sections who are fact! Again, is it unreasonable to velieve not to rank above commodores, while officers that Congress intended that those officers who served in the Civil War and are rewhose past services placed them according to tired are to have the full rank of admirals, the prior relative rank side by side with with the pay of the lower grade of tho brigadier generals of the Army should not, rank. fy a mere change of statute, be given a ben- We agree with the Comptroller of the efit in salary which was not at the same Treasury and the court of claims in the contime accorded to brigadier generals in the struction to be given this statute. If the Army! May not this explain its action purpose of Congress has been mistaken, the in so dividing the rear admirals into two law can be corrected by a new enactment classes,-one composed substantially of for making clear the intention to give the more mer rear admirals, equal both in rank and liberal treatment contended for by the appay with major generals in the Army, and pellant. the other of those who in the past were only The question remains as to the right of commodores, to whom was given the rank this officer to receive commutation for the of rear admirals, but the pay of brigadier sea ration provided for by 1578 and 1585 generals in the Army?"

of the Revised Statutes (U. S. Comp. Stat. We cannot believe that it was the inten- | 1901, pp. 1083, 1085). These sections are: tion of Congress that an officer upon re

“Sec. 1578. All officers shall be entitled tirement, and whose promotion shortly be to one ration, or to commutation therefor, fore his retirement was made for the purpose while at sea or attached to a sea-going ves. of giving him an increase of pay as well sel.” as rank, was intended to be given the high- "Sec. 1585. Thirty cents shall in all cases er grade of pay reserved for those of dis- be deemed the commutation price of the navy tinction or long service in the grade to ration.” which the retiring officer was promoted, leav- The provision of § 13 of the navy person. ing those in the active service who earned nel act is: the right to promotion to receive the lower "Officers of the line of the Navy grade of pay. In short, we believe it was shall receive the same pay and allowances, the intention of Congress to promote a re except forage, as are or may be provided by tiring officer for the purposes of pay into or in pursuance of law for the officers of corthe next grade above that in which he responding rank in the Army." 30 Stat. at served before retirement. In this case such L. 1007, chap. 413 (U. S. Comp. Stat. 1901, compensation was that provided for rear ad- p. 1072). mirals of the lower grade. If this were not The claim upon this branch of the case is 80, a retiring rear admiral would receive, that $8 1578 and 1585 are not repealed in under the circumstances now before us, more express terms by § 13 of the navy personnel pay upon retirement than is given to the act, and, as repeals by implication are not tear admirals in active service, in the lower favored, it is argued that, notwithstanding pay grade. It is urged that the promotion the later law, the allowance for sea rations and retirement of those who had rendered still remains for naval officers. But the later valuable service in the Civil War was the act distinctly provides that after June 30, object of Congress, which purpose is best 1899, commissioned officers of the line of the subserved by construing the statute to give Navy and of the medical and pay corps shall in case of such promotions the full rank and receive the same compensation and allowpay of the grade to which the officer is pro- ance, except forage, as are or may be provid. moted. This reasoning may be adequate to ed by or in pursuance of law for the of. furnish a motive for such legislation, but we ficers of corresponding rank in the Army. can only give effect to purposes expressed or This section was intended to cover, and in necessarily implied in the terms of the stat. exact terms provides for, all pay and al. u`e.

lowance for naval officers except forage. * But, it is urged, that in $$ 8 and 9 of the Where it is the intention of the statute to navy personnel act, Congress, in providing make a distinction or exception in allowfor retirement of naval officers, has included ance, that exception is expressly stated. The the grade of commodores, and provides that subject-matter of the later act provides for captains within their terms shall be retired allowances to such officers, and it is to with three fourths the pay of the next high- be the same as is now provided by law for er grade, “including the grade of commodore, Army officers of corresponding rank. Had which is retained on the retired list for Congress intended that such allowances as this purpose," thus evincing the purpose theretofore given should be continued, or to of Congress to retain the rank and pay of reserve, the right to commutation as to the commodores in express terms when such is sea ration, it would have been very easy to the purpose.

But this reservation is for' have inserted apt words which would have

* 192

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he For the reasons therein stated, the judge

rendered effectual this purpose. But the Assistant Attorney General Pradt and terms of the law undertaking to revise for. Ur. John Q. Thompson for appellee. mer laws upon the subject make no such reservation as is contended for, and we think

Mr. Justice Day delivered the opinion of we are not at liberty to add to the statute the court: by inserting it.

This case involves the same question, upon It is true that repeals by implication are identical facts, as to the pay of a retired not favored, but where the same subject-mat- rear admiral, just disposed of in the case ter is covered by two acts which cannot be of Gibson v. United States, 193 U. S. harinonized with a view to giving effect to ante, 613, 24 Sup. Ct. Rep. 613. the provisions of each, to the extent of the repugnancy between them the latter act will ment of the Court of Claims, dismissing the prevail, particularly in cases where it is ap- petition of the appellant, is affirmed. parent that the later act was intended as a substitute for the earlier one. District of

Mr. Justice Brewer took no part in the Columbia v. Hutton, 143 U. S. 18-26, 36 L. consideration or decision of this case. ed. 60–62, 12 Sup. Ct. Rep. 369. It is admitted that a change in the com

(194 U. S. 154) pensation of naval officers was made by the

SAMUEL M. DAMON, Piff. in Erro, enactment of the new law, and, while § 13 provided that such officers should not be

TERRITORY OF HAWAII. reduced in pay, there is no provision retaining the allowances of the former act. More Grants-conveyance of fishing right-offeos over, § 26 of the navy personnel act provides of habendum clause referring only to that all acts and parts of acts, so far as land. they conflict with its provisions, shall be repealed. For the reasons stated we think a definite "Ashing right in the adjoining sea, the allowance of the previous statute cannot

described in the granting clause of a royal stand consistently with the express provision

patent as "attached to this land," and which

right is of a sort long recognized by tho upon the same subject of the later act.

Hawaiian laws as private property, is 10We find no error in the judgment of the cluded in the grant, although the habendum is Court of Claims, and the same is affirmed. to have and to hold the above granted land,"

which, standing alone, might not include a

fishing right Mr. Justice Brewer took no part in the consideration or decision of this case.

(No. 207.)

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Argued April 12, 1904. Decided April 25. (194 U. S. 193)

1904.
JOHN LOWE, Appt.,
UNITED STATES.

N ERROR to the Supreme Court of the
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Territory of Hawaii to review a judg.

ment which affirmed the judgment of the Navypay of captain retired with rank of Circuit Court for the First Circuit of that

rear admiralallowance for sea rations— Territory, entered on a directed verdict in repeal of statute by implication.

favor of defendant in an action at law to

establish a fishing right. Reversed. This case is governed by the decision in Gibson V. United States, ante, 613.

See same case below, 14 Hawaiian Rep

405. (No. 212.)

The facts are stated in the opinion.

Messrs. Francis M. Hatch, Reuben D. Argued April 8, 1904. Decided April 25, Silliman, and J. J. Darlington for plaintiff 1904.

in error.

Mr. Lorrin Andrews for defendant in PPEAL from the Court of Claims to re-error. A

view a judgment dismissing the peti. tion of a retired rear admiral in the United *Mr. Justice Holmes delivered the opin. States Navy in an action to recover the dif. ion of the court: ference between three fourths the pay of a This is an action at law, somewhat like a brigadier general and that of a major gen- bill to quiet title, to establish the plaineral of the Army, accorded by statute to ro tiff's right to a several fishery of a peculiar tired rear admirals. Affirmed.

sort, between the coral reef and the ahuSee same case below, 38 Ct. Cl. 170.

puaa of Moanalua on the main land of the Messrs. A. A. Hoehling, Jr., and island of Oahu. The organic act of the Charles L. Fraliey for appellant.

territory of Hawaii repealed all laws of the

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Republic of Hawaii which conferred exclu- / reef should be free to the people, etc.; and sive fishing rights, subject, however, to vest- then by the second it was enacted that the ed rights, and it required actions to be fishing grounds from the reefs to the beach, started within two years by those who or, where there are no reefs, for one mile claimed such rights. Act of April 30, 1900, seaward, “shall in law be considered the prichap. 339, $$ 95, 96 (31 Stat. at L. 141, vate property of the landlords whose lands, 160). At the trial the presiding judge di- by ancient regulation, belong to the same; rected a verdict for the defendant. Excep- in the possession of which private fisheries tions were taken but were overruled by the said landholders shall not be molested the supreme court of the territory, and the except” etc. case comes here by writ of error.

By § 3 "the landholders shall be considThe right claimed is a right within cer- ered in law to hold said private fisheries for tain metes and bounds to set apart one spe the equal use of themselves and of the tencies of fish to the owner's sole use, or, alter- ants on their respective lands; and the natively, to put a taboo on all fishing with tenants shall be at liberty to use the fish. in the limits for certain months, and to re- eries of their landlords subject to the receive from all fishermen one third of the strictions in this article imposed.” Then fish taken upon the fishing grounds. A right follows a statement of the rights of the landof this sort is somewhat different from those lord as they have been summed up above, familiar to the common law, but it seems and a provision that the landlords shall not to be well known to Hawaii, and, if it is have power to lay any tax or to impose any established, there is no more theoretical dif. restrictions upon their tenants regarding the ficulty in regarding it as property and a private fisheries other than those prescribed. vested right than there is regarding any or- The Civil Code of 1859, § 387, repeated dinary easement or profit a prendre as such. the enactment of § 2, that the fishing The plaintiff's claim is not to be approached grounds within the reef or one mile seaward as if it were something anomalous or mon. "shall, in law, be considered the private strous, difficult to conceive and more difficult property of the konohiki,” etc., in nearly to admit. Moreover, however, anomalous it the same words, and other sections codified is, if it is sanctioned by legislation, if the the regulations just mentioned. There was statutes have erected it into a property a later repetition in the Penal Laws of 1897, right, property it will be, and there is noth- $ 1452, etc., and this was in force when the ing for the courts to do except to recognize organic act of Congress was passed, repealit as a right Wedding v. 11eyler, 192 U. ing, as we have said, the laws conferring exS. 573, 583, ante, p. 322, 24 Sup. Ct. Rep. Clusive fishing rights, but preserving vested 322.

rights. The property formerly belonged to Kame- The foregoing laws not only use the words hameha IV., from whom it passed to his “private property,” but show that they mean brother, Lot Kamehameha, and from him by what they say by the restrictions cutting mesne conveyances to the plaintiff. The ti-down what otherwise would be the incidents tle of the latter to the ahupuaa is not dis- of private property. There is no color for a puted. He claims the fishery also under a suggestion that they*created only a revocaseries of statutes and a royal grant. The ble license, and if they imported a grant or history is as follows: In 1839 Kamehameha a confirmation of an existing title, of course III. took the fishing grounds from Hawaii the repeal of the laws would not repeal the to Kauai and redistributed them,—those grant. The argument against their effect named without the coral reef, and the ocean was not that in this case the ahupuaa did beyond, to the people; those "from the coral not belong to the fishery, within the words reef to the sea beach for the landlords and "landlords whose lands, by ancient regula. for the tenants of their several lands, but tion, belong to the same” (the land seems not for others." The landlord referred to formerly to have been incident to the fishseems to have been the konohiki, or overlord, ery), but that citizens have no vested rights of an ahupuaa, or large tract like that against the repeal of general laws. This is owned by the plaintiff. It is not necessary one of those general truths which become to speculate as to what the effect of this act untrue by being inaccurately expressed. A of the king would have been standing alone, general law may grant titles as well as a he then* having absolute power. It had, at special law. It depends on the import and least, the effect of inaugurating a system, direction of the law. A strong example of de facto. But in 1846, the monarchy then the application of the rule intended by the being constitutional, an act was passed, ar- argument is to be found in Wisconsin & M. ticle 5 of which was entitled “Of the Public R. Co. v. Powers, 191 U. S. 379, ante, p. 107, and Private Rights of Piscary.” By the 1st 24 Sup. Ct. Rep. 107, where a railroad comsection of this article it was provided again pany was held to have no vested right to ex. that the same fishing grounds outside the emptions proclaimed in a general tax acte

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V.

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(194 U. S. 141) The statute was construed not to import an

W. S. KIRBY, Apptung offer, covenant, or grant to railroads which might be built in reliarce upon it. But if | AMERICAN SODA FOUNTAIN COM a general law does express such an offer, as

PANY. it may, the grant is made. If the Hawaii statutes did not import a grant, it is hard to Appeal from circuit court jurisdiction of see their meaning.

circuit court-amount in dispute. However, in this case it is not necessary to invoke the statutes further than to show 1. No pecuniary limit is imposed by the act that, by the law in force since 1846, at least,

of March 3, 1891 (26 Stat. at L. 827, chap.

517, U. 8. Comp. Stat. 1901, p. 549), upon such rights as the plaintiff claims, and

the appellate jurisdiction over the Federal which, as is shown by the evidence, he and

district or circuit courts, which is conferred his predecessors in title have been exercising by that act upon the Supreme Court of the for forty years, have been recognized as pri- United States and the circuit courts of apvate property. Such is the view of the peals.

A matter in dispute exceeding the value of leading case, decided in 1858 and acquiesced

$2,000 is presented by a cross bill which seeks in, we believe, ever since. Haalelea

to recover a balance of $1,700 due on a conMontgomery, 2 Hawaiian R. 62, 66. In the

tract for the exchange of soda fountain appresent instance the plaintiff claims under paratus, where the original bill, which was a royal patent, admitted to have been ef- dismissed complainant's own motion,

asked for the cancelation of his agreement to fective as to whatever, by its true construc

pay $2,025 in consideration of the exchange, tion, it purported to convey. This patent

3. The jurisdiction of a Federal circuit court, describes the ahupuaa by metes and bounds, once acquired on removal from a state court, and then the granting clause goes on: cannot be devested by the dismissal of the bill “There is also attached to this land a fish- on complainant's own motion after a cross ing right in the adjoining sea, which is

bill has been filed, although the jurisdictional

amount may no longer be in dispute. bounded as follows," again giving boundaries, and continuing: “The islands of

(No. 357.) Mokumoa, Mokuonini, and Mokuoco are a part of Moa lalua, and are included in the Submitted March 21, 1904. Decided April above area. "* The description of what is in

25, 1904. tended to be conveyed could not be plainer. But the habendum is to have and to hold | A PPEAL from the circuit court of the granted land,” ,

the Northern District as the fishery of an overlord or konohiki, of Texas to review a decree granting the reunlike the rights of tenants, did not pass as lief sought by a cross complaint after disan incident of land, but must be distinctly missal of the original bill on complainant's granted, the fishery was not included in the own motion. On motion to dismiss or af. patent. Haalelea v. Montgomery, 2 Hawai- firm, affirmed. ian Rep. 62, 71. Again, we must avoid being deceived by a form of words. We assume

Statement by Mr. Chief Justice Fuller: that a mere grant of the ahupuaa without

Kirby filed his first original amended pe mention of the fishery would not convey the tition in the district court of Dallas county, fishery. But it does not follow that any

Texas, against the American Soda Fountain particular words are necessary to convey it Company, averring that he was induced by when the intent is clear. When the descrip

false representations by defendant to agree tion of the land granted says that there is in- to exchange his soda fountain apparatus for cident to it a definite right of fishery, it does

the soda fountain apparatus of defendant, not matter whether the statement is techni.

and pay defendant $2,025 in addition, and

eto, cally accurate or not; it is enough that the which, however, plaintiff alleged did not con.

signed a memorandum in relation th grant is its own dictionary and explains that tain all the terms of the contract; that the it means by "land" in the habendum, land exchange was made, but defendant's soda and fishery as well. There is no possibility fountain apparatus, instead of being superior of mistaking the intent of the patent. It delin value by $2,025, was, as matter of*fact, clares that intent plainly on its face. There less by $2,500; and plaintiff prayed for the is no technical rule which overrides the ex-cancelation of the obligation to pay $2,025, pressed intent, like that of the common law, for $2,500 damages, and for general relief. which requires the mention of heirs in order | The original petition sought damages merely, to convey a fee. We are of opinion that the and in the sum of $1,500. ра ent did what it was meant to do, and On application of defendant the cause was therefore that the plaintiff is entitled to pre- removed to the circuit court of the United vail.

States for the northern district of Texas. Judgment reversed.

The case was entered in that court May

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