*553

But quite as important, in our view, is the declared purpose for which the credit is to be given "computing their pay." Does it not do violence to this expression of purpose to give the law a retrospective effect? The

duct which shall control the future rights | additional pay, thereby fixing in the same and dealings of men, rather than review and section two distinct dates for the beginning affix new obligations to that which has been of the pay of the same officers." [37 Ct. CL done in the past. While it is undoubtedly 381.] within the power of Congress to provide for bounties or gratuities to those in the naval or military service of the United States, we should hardly look for such legislation in an act having the declared purpose and scope of the one now under consideration. Retro-purpose for which the five years' service is spective legislation is not favored. Cooley, Const. Lim. 529. Retrospective laws which have been sustained in the courts have ordinarily had the effect to remedy irregularities in legal procedure, assessment of property for taxation, and the like. Cooley, Const. Lim. 530, 531.

But it is urged that the plain meaning of this statute includes officers in the situation of the claimant, and requires a readjustment of their pay for years past. The language used is "all officers that have been or may be appointed to the Navy from civil life," and it is claimed that unless this construction is given to the act, violence is done to its terms, and to the rights intended to be conferred upon the claimant and other officers similarly situated. The proviso directs credit on the date of appointment. It is argued that this means as of the date of appointment. If this be true, it is in conflict with the first clause of the act, which makes increased pay begin on June 30th. The effect of this construction of the proviso, when read with the first clause of the act, is thus pertinently pointed out in the majority opinion of the court of claims:

to be credited cannot be ignored. It is thus that the object of the act is to be accomplished, and it is not declared to be with a view of readjusting the pay of officers within the classes named, or giving to them, as Congress might, a gratuity for past services, but the credit is solely given for the purpose of "computing their pay," and this is to be read in the light of the purview of the statute wherein its operation is declared to be effective from the beginning of the coming fiscal year.

*But it is said that the declared policy of the act includes not only those to be hereafter appointed, but also those who have been appointed to the Navy from civil life. It will be presumed that Congress, in passing this legislation, had in mind the law al. ready in force regulating the subject, and we find in § 1556 (U. S. Comp. Stat. 1901, p. 1068), that civil engineers in the Navy are to be paid according to the length of their service, with increase of pay through three periods of five years each, and after fifteen years of service they are to receive the maximum amount of pay. If the act under consideration is to be read, as we think it should be, to have reference to the pay of naval officers beginning with the next fiscal year "on and after June thirtieth," it would increase the pay of those who had not reached the maximum pay by continuous service by giving to such officers, for the purpose of computing their pay thereafter, a credit for the five years' service or so much thereof as would enable such officer to reach

"The subject-matter of the proviso in question pertains to the rank of chaplains and to the basis for computing the pay of 'all officers, including warrant officers, who have been or may be appointed to the Navy from civil life;' and the purview or body of the section refers to the pay of 'commissioned officers of the line of the Navy and of the Medical and Pay Corps,' many of whom-nearly all from the Medical Corps-the maximum pay. This construction gives were appointed from civil life, while the chaplains, the majority of the professors of mathematics, nearly all the civil engineers, and other officers were appointed from civil life.

"So that the language of the proviso 'all officers who have been or may be appointed to the Navy from civil life' clearly includes those officers mentioned in the body of the section who were appointed from civil life.

force to the declared purpose of the act to begin its operation at the beginning of the coming fiscal year, and benefits those officers named in the proviso who have not already, by continuous service, been advanced in pay to the maximum compensation fixed by law. Congress must be presumed to have had before it, in framing this legislation, the statute already in force, fixing the pay of naval officers by advancing them every five years through three such periods to maximum pay. "If, therefore, the claimant's contention It enacted, in the statute under considerashould prevail, those officers so appointed tion, that the officers named, appointed or whose pay was increased after June 30, 1899, to be appointed from civil life, should have by assimilation to Army pay, would, in addi- such credit on the date of appointment for tion thereto, be entitled to receive from the one purpose,-"computing their pay." In date of appointment a gratuity of five years''the light of the operation of the act as de

*554

*555

N ERROR to the United States Circuit

clared in the first clause to begin on the 30th[ourt of Appeals for the Third Circuit

of June following, we think this was meant,

See same case below, 53 C. C. A. 321, 115 Fed. 689.

so far as it applied to officers theretofore to review a judgment which reversed the appointed, and who were not receiving maxi-judgment of the Circuit Court for the Eastmum pay, to give them a credit of the term ern District of Pennsylvania in favor of of five years' advancement toward full pay plaintiff in an action of trover brought by for the purpose of computing compensation a trustee in bankruptcy, and remanded the after the beginning of the coming fiscal year. case with instructions to enter judgment for *While the question is not free from diffi- defendant. Dismissed. culty, we cannot escape the conclusion that had Congress intended that this credit should be given not only for the purpose of computing future pay, but with a view to readjusting past compensation, and giving gratuities for years past, it would have declared its purpose in more distinct terms. The construction here given is consistent with the declared purpose of the act; it gives to the law a future, not a retrospective, operation, and, in our judgment, carries out the expressed purpose of Congress in passing the law.

Statement by Mr. Chief Justice Fuller: This was an action of trover commenced by plaintiff in error in the court of common pleas for the county of Lehigh, Pennsylvania, October 18, 1900, the declaration averring in substance that on January 13, 1900, certain lumber and building materials were the property of the firm of Bennett & Rothrock, and that, by virtue of an adjudication in bankruptcy of that date, plaintiff succeed

Judgment of the Court of Claims affirmed.ed to the title of that firm to said lumber

(191 U. S. 526)

W. H. SPENCER, Trustee in Bankruptcy of the Estate of James V. Bennett and Samuel W. Rothrock, Partners as Bennett & Rothrock, Piff. in Err.,

v.

DUPLAN SILK COMPANY.

Appeal-review of judgment of circuit court of appeals-case arising under Federal

law.

1. A case does not arise under the laws of the United States so as to deprive the judgment of the circuit court of appeals therein of that finality which exists when the jurisdiction of the circuit court depends entirely on diverse citizenship, unless it appears by plaintiff's pleading that the suit really and substantially involves a dispute or controversy as to the effect or construction of the Constitution, or validity or construction of the laws or treaties of the United States, upon the determination of which the result depends.

2. The removal from a state court to a Fed

eral circuit court for diverse citizenship, of a suit by a trustee in bankruptcy for the conversion of property, the title to which vested in him by the adjudication in bankruptcy, places such suit in the Federal court as if it had been commenced there on that ground of jurisdiction, within the rule making the judgment of the circuit court of appeals final when the jurisdiction of the circuit court depends entirely on diverse citizenship, and not as if it had been commenced there by consent of defendant, under § 23 of the bankruptcy

act.

[No. 83.]

Argued December 7, 1903. Decided Decembcr 21, 1903.

1. See Courts, vol. 18, Cent. Dig. § 1020. U. S. Comp. St. 1901, p. 3431.

and materials, and that on January 15, 1900, defendant in error wrongfully converted the lumber and materials to its own use.

November 19, 1900, defendant in error

presented its bond and petition for the removal of the cause to the circuit court of the United States for the eastern district of Pennsylvania, the petition alleging that the controversy in the suit was wholly between citizens of different states; that the plaintiff, trustee in bankruptcy of Bennett & Rothrock, and Bennett & Rothrock themselves, were at the time of the commencement of the suit, and at the time the petition for removal was presented, citizens of the state of Pennsylvania; and that the defendant was at the time of the commencement of the suit, and at the time the petition for removal was presented, a citizen of New York; and thereupon the cause was removed. The cause having been docketed and the record filed, defendant filed a plea of not guilty, and a trial was had November 11, 1901, resulting in a verdict for plaintiff for $12,183. January 15, 1902, a motion by defendant for judgment non obstante veredicto was overruled and judgment entered in favor of plaintiff (112 Fed. 638), to review which defendant prosecuted a writ of error from the United States circuit court of appeals for the third circuit, and that court on May 7, 1902, reversed the judgment of the circuit court, and remanded the cause with instructions to enter judgment for defendant on the verdict. 53 C. C. A. 321, 115 Fed. 689. This writ of error was then allowed.

Messrs. Thomas M. B. Hicks, William H. Spencer, and Clarence L. Peaslee for plaintiff in error.

Messrs. Richard C. Dale, William Y.

*528

C. Anderson, and William Jay Turner for | court is in issue; and in such case the quesdefendant in error. tion of jurisdiction only is certified to and decided by this court. It also lies directly

Mr. Chief Justice Fuller delivered the from the circuit court to this court in cases opinion of the court:

In our opinion the jurisdiction of the circuit court depended entirely on diverse citizenship, the judgment of the circuit court of appeals was final, and the writ of error must be dismissed. Colorado Central Consol. Min. Co. v. Turck, 150 U. S. 138, 37 L. ed. 1030, 14 Sup. Ct. Rep. 35; Borgmeyer v. Idler, 159 U. S. 408, 40 L. ed. 199, 16 Sup. Ct. Rep. 34; Press Pub. Co. v. Monroe, 164 U. S. 105, 41 L. ed. 367, 17 Sup. Ct. Rep. 40.

The views expressed in the latter case will suffice to indicate the governing rules. In that case the complaint in the circuit court showed that the parties were citizens of different states, and did not claim under the Constitution or laws of the United States. At the trial plaintiff relied wholly upon a common-law right, but defendant invoked the Constitution and laws of the United States. Judgment having passed for plaintiff, which was aflirmed by the circuit court of appeals, we dismissed a writ of error to that court on the ground that its judgment was made final by the statute. Mr. Justice Gray, delivering the opinion, said:

involving the construction or application of
the Constitution, or the constitutionality of
a law, or the validity or construction of a
treaty, of the United States, or in which the
Constitution or a law of a state is claimed
to be in contravention of the Constitution of*
the United States; and in any of these cases
the appellate jurisdiction of this court is not
limited to the constitutional question, but
extends to the determination of the whole
case. Act of March 3, 1891, chap. 517, § 5
(26 Stat. at L. 827, 828, U. S. Comp. Stat.
1901, p. 549); Horner v. United States, 143
U. S. 570, 36 L. ed. 266, 12 Sup. Ct. Rep.
522; Chappell v. United States, 160 U. S.
499, 40 L. ed. 510, 16 Sup. Ct. Rep. 397.

"From final judgments of the circuit court in all other civil suits an appeal or writ of error lies to the circuit court of appeals; and the judgments rendered thereon by the circuit court of appeals are final (unless this court, by writ of certiorari or otherwise, orders the whole case to be brought up for its decision) in all cases in which the jurisdiction of the circuit court 'is dependent entirely upon the parties being aliens and citizens of the United States, or citizens of different states;' as well as in cases arising under the patent laws, or under the revenue laws. In all other civil actions (including those aris

States), if the matter in controversy exceeds $1,000, besides costs, there is, as of right, an appeal or writ of error to bring the case to this court. Act of March 3, 1891, chap. 517, § 6.

"Of suits of a civil nature, at law or in equity, the circuit courts of the United States have original jurisdiction, by reason of the citizenship of the parties, in cases between citizens of different states or between citi-ing under the copyright laws of the United zens of a state and aliens; and by reason of the cause of action, 'in cases arising under the Constitution or laws of the United States, or treaties made or which shall be made under their authority,' including, of course, suits arising under the patent or copyright laws of the United States. Act of August 13, 1888, chap. 866, § 1 (25 Stat. at L. 433, U. S. Comp. Stat. 1901, p. 508); Rev. Stat. § 629, cl. 9 (U. S. Comp. Stat. 1901, p. 504). In order to give the circuit court jurisdiction of a case as one arising under the Constitution, laws, or treaties of the United States, that it does so arise must appear from the plaintiff's own statement of his claim. Colorado Central Consol. Min.

"This plaintiff in error, having been de feated in the circuit court, did not bring the case directly to this court, as one involving the construction or application of the Constitution of the United States, or upon any other of the grounds specified in § 5 of the act of 1891. But it took the case, under § 6, to the circuit court of appeals, and, having been again defeated in that court, now claims, as of right, a review by this court of the judgment of the circuit court of appeals. 1 "The judgment of the circuit court of appeals being made final in all cases in which the jurisdiction of the circuit court is dependent entirely upon the parties being citizens of different states, but not final in cases arising under the copyright laws of the United States, where the matter in contro"From final judgments of the circuit court versy exceeds $1,000, the test of the appelin civil suits an appeal or writ of error lies late jurisdiction of this court over the case to this court, or to the circuit court of ap- at bar is whether it was one arising under peals. It lies directly to this court in any the copyright laws of the United States, or case in which the jurisdiction of the circuit' was one in which the jurisdiction of the cir

Co. v. Turck, 150 U. S. 138, 37 L. ed. 1030,
14 Sup. Ct. Rep. 35; Tennessee v. Union &
P. Bank, 152 Ú. S. 454, 38 L. ed. 511, 14
Sup. Ct. Rep. 654; Oregon Short Line & U.
N. R. Co. v. Skottowe, 162 U. S. 490, 40 L.
ed. 1048, 16 Sup. Ct. Rep. 869; Hanford v.
Davies, 163 U. S. 273, 41 L. ed. 157, 16 Sup.
Ct. Rep. 1051.

189.

cuit court wholly depended upon the parties | Bank, 178 U. S. 524, 44 L. ed. 1175, 20 Sup. being citizens of different states.

Ct. Rep. 1000. Indeed, if the case had not been removed, and had gone to judgment in the court of common pleas, and that judg ment had been affirmed by the supreme court of Pennsylvania on the same grounds as those on which the circuit court of appeals proceeded, a writ of error could not have been brought under § 709 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 575), for the case would not have fallen within either of the classes enumerated in that section as the basis of our jurisdiction. The

"The complaint, alleging that the plaintiff was a citizen of Illinois and the defendant a citizen of New York, and claiming damages in a sum of more than $2,000, showed that the circuit court had jurisdiction of the case by reason of the parties being citizens of different states. The plaintiff, in her complaint, did not claim any right under the Constitution and laws of the United States, or in any way mention or refer to that Constitution or to those laws; and, at the trial, she relied wholly upon a right giv-validity of the bankruptcy act was conceded, en by the common law, and maintained her action upon such a right only. It was the defendant, and not the plaintiff, who invoked the Constitution and laws of the United States. This, as necessarily follows from the foregoing considerations, and as was expressly adjudged in Colorado Central Consol. Min. Co. v. Turck, 150 U. S. 138, 37 L. ed. "Sec. 23a. The United States circuit 1030, 14 Sup. Ct. Rep. 35, is insufficient to courts shall have jurisdiction of all controsupport the jurisdiction of this court to re-versies at law and in equity, as distinguished view, by appeal or writ of error, the judg. from proceedings in bankruptcy, between ment of the circuit court of appeals. trustees as such and adverse claimants con

and no right specially set up or claimed under it was denied.

Section 23 of the bankruptcy law does not enable us to maintain jurisdiction. The first two clauses read (before the amendment of February 5, 1903 (32 Stat. at L 797, chap. 487) as follows:

the trustees, in the same manner and to the same extent only as though bankruptcy proceedings had not been instituted, and such controversies had been between the bankrupts and such adverse claimants.

"The jurisdiction of the circuit court hav-cerning the property acquired or claimed by ing been obtained and exercised solely be cause of the parties being citizens of different states, the judgment of the circuit court of appeals was final, and the writ of error must be dismissed for want of jurisdiction." In the present case it is contended that "b. Suits by the trustee shall only be the jurisdiction was not dependent entirely brought or prosecuted in the courts where on the opposite parties to the suit being citi- the bankrupt whose estate is being adminiszens of different states, because the suit tered by such trustee might have brought or arose under the laws of the United States, prosecuted them if proceedings in bankruptcy and that, therefore, jurisdiction rested also had not been instituted, unless by consent of on that ground. But a suit does not so the proposed defendant." [30 Stat. at L. 552, arise unless it really and substantially in- chap. 541, U. S. Comp. Stat. 1901, p. 3431.] volves a dispute or controversy as to the ef- Plaintiff brought his action in the state fect or construction of the Constitution, or court, and its removal on the ground of divalidity or coustruction of the laws or trea-verse citizenship placed it in the circuit ties of the United States, upon the determination of which the result depends, and which appears in the record by plaintiff's pleading. Arbuckle v. Blackburn, 191 U. S. 406, ante, 148, 24 Sup. Ct. Rep. 148; Western U. Teleg. Co. v. Ann Arbor R. Co. 178 U. S. 239, 44 L. ed. 1052, 20 Sup. Ct. Rep. 867; Muse v. Arlington Hotel Co. 168 U. S. 430, 42 L. ed. 531, 18 Sup. Ct. Rep. 109. *Plaintiff's declaration set forth no matter raising any controversy under the Constitution, laws, or treaties of the United States. It is true that if the lumber and materials belonged to Bennett & Rothrock on January 13, 1900, plaintiff in error succeeded to the title of the firm on the adjudication; but the question of Bennett & Rothrock's ownership on that day in itself involved no Federal controversy, and the mere fact that plaintiff was trustee in bankruptcy did not give jurisdiction. Bardes v. First Nat.

court as if it had been commenced there on that ground of jurisdiction, and not as if it had been commenced there by consent of defendant under § 23 of the bankruptcy act. The right to removal is absolute, and cannot be trammeled by such a consequence.

Nor can this writ of error be sustained under § 25 of the bankruptcy law, for the section has no application. The reasons for that conclusion will be found in Holden v. Stratton, 191 U. S. 115, ante, p. 45, 24 Sup. Ct. Rep. 45.

As to the suggestion that certiorari might now be issued, the judgment of the circuit court of appeals was rendered May 7, 1902, and there is nothing to take the case out of the general rule. The Conqueror, 166 U. S. 110, 114, 41 L. ed. 937, 939, 17 Sup. Ct. Rep. 510; Ayres v. Polsdorfer, 187 U. S. 585, 595. 47 L. ed. 314, 317, 23 Sup. Ct. Rep. 196. Writ of error dismissed.

*532

Argued December 4, 7, 1903. Decided Janu- any alien immigrants it shall be the duty of

Mr. Chief Justice Fuller delivered the of such vessel who shall either knowingly or opinion of the court: