quarters of the sea pay of the next higher grade, in accordance with § 11 of the navy personnel act above quoted. By 1466 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, p. 1029), it is provided: class of pay shall be given those situated as the claimant is, leads us to consider the objects to be attained by the new law, the circumstances under which it was enacted, and to construe the language used in view of the purpose of Congress in enacting the statute. There is no question that, had the claimant been promoted in the active service from captain to rear admiral, he would have "The relative rank between officers of the Navy, whether on the active or retired list, and officers of the Army, shall be as follows, lineal rank only being considered: "The vice admiral shall rank with the passed into the lower grade of rear adlieutenant general. "Rear admirals with major generals. "Commodores with brigadier generals. "Captains with colonels. "Commanders with lieutenant colonels. "Lieutenant commanders with majors. "Lieutenants with captains. "Masters with first lieutenants. "Ensigns with second lieutenants." Section 1261 (U. S. Comp. Stat. 1901, p. 893) fixes the pay of the officers of the Army: "The officers of the Army shall be entitled to the pay herein stated after their respective designations: mirals, so far. at least, as his pay was concerned, and would have received, so long as within that number, the pay of a brigadier general, notwithstanding that for all other purposes he was entitled to the rank and privileges of a rear admiral. The appellant was promoted, and almost immediately retired; when thus retired, having served during the Civil War, he was given the rank of the next higher grade and three fourths of the sea pay of that grade. Congress had already created, for the purposes of pay, a division in the rank or grade of rear admiral, with higher pay for those 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 ofhe should receive the pay of the next higher "Lieutenant general: eleven thousand dol- ficer under the circumstances stated, that lars a year. "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 lower numbers. The claim of the appellant is, in substance, 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 conance of a brigadier general. It is admitted in the discussion, that the provision fixing the pay of the nine rear admirals to correspond with the pay of a brigadier general arose from the fact that the relative rank of officers of the Army and Navy had been so adjusted by statute as to rank commodores with brigadier generals, and the rank of commodore being dropped from the service, the pay of a brigadier general was given to the nine lower numbers of the rear admirals, who would otherwise have had the rank of commodores, with the corresponding pay of brigadier generals. clusion is in harmony with the decision of this court in Rodgers v. United States [185 U. S. 83, 46 L. ed. 816, 22 Sup. Ct. Rep. 582] in which Mr. Justice Brewer, speaking for the court, said of this statute: "The individuals thus raised in rank were not so raised on account of distinguished services or for any personal reason, but simply in consequence of the abolition of the of ficial rank they had held. Is it unreasonable to believe that Congress thought it unwise to give to those officers (who had neither by length of service or by personal distinction 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 881. *191 pay, there should be some recognition of the fact? Again, is it unreasonable to velieve that Congress intended that those officers whose past services placed them according to the prior relative rank side by side with brigadier generals of the Army should not, by a mere change of statute, be given a benefit in salary which was not at the same time accorded to brigadier generals in the Army? May not this explain its action in so dividing 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?" officers retired under these sections who are not to rank above commodores, while officers who served in the Civil War and are retired are to have the full rank of admirals, with the pay of the lower grade of the rank. We agree with the Comptroller of the Treasury and the court of claims in the construction to be given this statute. If the purpose of Congress has been mistaken, the law can be corrected by a new enactment making clear the intention to give the more liberal treatment contended for by the appellant. The question remains as to the right of this officer to receive commutation for the sea ration provided for by 1578 and 1585 of the Revised Statutes (U. S. Comp. Stat. 1901, pp. 1083, 1085). These sections are: "Sec. 1578. All officers shall be entitled to one ration, or to commutation therefor, while at sea or attached to a sea-going ves sel." "Sec. 1585. Thirty cents shall in all cases be deemed the commutation price of the navy ration." The provision of § 13 of the navy personnel act is: "Officers of the line of the Navy shall receive the same pay and allowances, except forage, as are or may be provided by or in pursuance of law for the officers of corresponding rank in the Army." 30 Stat. at L. 1007, chap. 413 (U. S. Comp. Stat. 1901, p. 1072). We cannot believe that it was the intention of Congress that an officer upon retirement, and whose promotion shortly before his retirement was made for the purpose of giving him an increase of pay as well as rank, was intended to be given the higher grade of pay reserved for those of distinction or long service in the grade to which the retiring officer was promoted, leaving those in the active service who earned the right to promotion to receive the lower grade of pay. In short, we believe it was the intention of Congress to promote a retiring officer for the purposes of pay into the next grade above that in which he served before retirement. In this case such compensation was that provided for rear admirals of the lower grade. If this were not so, a retiring rear admiral would receive, under the circumstances now before us, more pay upon retirement than is given to the rear admirals in active service, in the lower pay grade. It is urged that the promotion and retirement of those who had rendered valuable service in the Civil War was the object of Congress, which purpose is best subserved by construing the statute to give in case of such promotions the full rank and pay 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 furnish a motive for such legislation, but we can only give effect to purposes expressed or necessarily implied in the terms of the statute. *But, it is urged, that in §§ 8 and 9 of the navy personnel act, Congress, in providing for retirement of naval officers, has included the grade of commodores, and provides that captains within their terms shall be retired with three fourths the pay of the next higher grade, “including the grade of commodore, which is retained on the retired list for this purpose," thus evincing the purpose of Congress to retain the rank and pay of commodores in express terms when such is the purpose. But this reservation is for The claim upon this branch of the case is that §§ 1578 and 1585 are not repealed in express terms by § 13 of the navy personnel act, and, as repeals by implication are not favored, it is argued that, notwithstanding the later law, the allowance for sea rations still remains for naval officers. But the later act distinctly provides that after June 30, 1899, commissioned officers of the line of the Navy and of the medical and pay corps shall receive the same compensation and allow ed by or in pursuance of law for the officers of corresponding rank in the Army. This section was intended to cover, and in exact terms provides for, all pay and allowance for naval officers except forage. Where it is the intention of the statute to make a distinction or exception in allowance, that exception is expressly stated. The subject-matter of the later act provides for allowances to such officers, and it is to be the same as is now provided by law for Army officers of corresponding rank. Had Congress intended that such allowances as theretofore given should be continued, or to reserve, the right to commutation as to the sea ration, it would have been very easy to have inserted apt words which would have *192 rendered effectual this purpose. But the terms of the law undertaking to revise former laws upon the subject make no such reservation as is contended for, and we think we are not at liberty to add to the statute by inserting it. It is true that repeals by implication are not favored, but where the same subject-matter is covered by two acts which cannot be harmonized with a view to giving effect to the provisions of each, to the extent of the repugnancy between them the latter act will prevail, particularly in cases where it is apparent that the later act was intended as a substitute for the earlier one. District of Columbia v. Hutton, 143 U. S. 18-26, 36 L. ed. 60-62, 12 Sup. Ct. Rep. 369. It is admitted that a change in the compensation of naval officers was made by the enactment of the new law, and, while § 13 provided that such officers should not be reduced in pay, there is no provision retaining the allowances of the former act. Moreover, § 26 of the navy personnel act provides that all acts and parts of acts, so far as they conflict with its provisions, shall be repealed. For the reasons stated we think the allowance of the previous statute cannot stand consistently with the express provision upon the same subject of the later act. We find no error in the judgment of the Court of Claims, and the same is affirmed. Mr. Justice Brewer took no part in the consideration or decision of this case. (194 U. S. 193) JOHN LOWE, Appt., v. UNITED STATES. Navy-pay of captain retired with rank of rear admiral-allowance for sea rationsrepeal of statute by implication. This case is governed by the decision in Gibson ▼. United States, ante, 613. [No. 212.] Argued April 8, 1904. 1904. Assistant Attorney General Pradt and Mr. John Q. Thompson for appellee. Mr. Justice Day delivered the opinion of the court: This case involves the same question, upon identical facts, as to the pay of a retired rear admiral, just disposed of in the case of Gibson v. United States, 193 U. S. ante, 613, 24 Sup. Ct. Rep. 613. For the reasons therein stated, the judg ment of the Court of Claims, dismissing the petition of the appellant, is affirmed. Mr. Justice Brewer took no part in the consideration or decision of this case. INT Territory of Hawaii to review a judg ment which affirmed the judgment of the Circuit Court for the First Circuit of that Territory, entered on a directed verdict in favor of defendant in an action at law to establish a fishing right. Reversed. See same case below, 14 Hawaiian Rep. 465. The facts are stated in the opinion. Messrs. Francis M. Hatch, Reuben D. Decided April 25, | Silliman, and J. J. Darlington for plaintiff in error. 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 re-tiff's right to a several fishery of a peculiar tired rear admirals. Affirmed. See same case below, 38 Ct. Cl. 170. Messrs. A. A. Hoehling, Jr., Charles L. Fraliey for appellant. sort, between the coral reef and the ahupuaa of Moanalua on the main land of the and island of Oahu. The organic act of the territory of Hawaii repealed all laws of the *157 159 *158 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. strictions in this article imposed." Then follows a statement of the rights of the landlord as they have been summed up above, and a provision that the landlords shall not have power to lay any tax or to impose any restrictions upon their tenants regarding the private fisheries other than those prescribed. 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 fishin the limits for certain months, and to re-eries of their landlords subject to the receive from all fishermen one third of the fish taken upon the fishing grounds. A right of this sort is somewhat different from those familiar to the common law, but it seems to be well known to Hawaii, and, if it is established, there is no more theoretical difficulty in regarding it as property and a vested right than there is regarding any ordinary easement or profit a prendre as such. The plaintiff's claim is not to be approached as if it were something anomalous or monstrous, difficult to conceive and more difficult to admit. Moreover, however, anomalous it is, if it is sanctioned by legislation, if the statutes have erected it into a property right, property it will be, and there is nothing for the courts to do except to recognize it as a right. Wedding v. Meyler, 192 U. S. 573, 583, ante, p. 322, 24 Sup. Ct. Rep. 322. The Civil Code of 1859, § 387, repeated the enactment of § 2, that the fishing grounds within the reef or one mile seaward "shall, in law, be considered the private property of the konohiki," etc., in nearly the same words, and other sections codified the regulations just mentioned. There was a later repetition in the Penal Laws of 1897, § 1452, etc., and this was in force when the organic act of Congress was passed, repealing, as we have said, the laws conferring exclusive fishing rights, but preserving vested 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 regulafor 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 exthat the same fishing grounds outside the emptions proclaimed in a general tax act. *160 161 (194 U. S. 141) W. S. KIRBY, Appt., The statute was construed not to import an บ. SODA FOUNTAIN COM- Appeal from circuit court — jurisdiction of circuit court-amount in dispute. 1. 2. No pecuniary limit is imposed by the act of March 3, 1891 (26 Stat. at L. 827, chap. 517, U. S. Comp. Stat. 1901, p. 549), upon the appellate jurisdiction over the Federal district or circuit courts, which is conferred by that act upon the Supreme Court of the United States and the circuit courts of appeals. A matter in dispute exceeding the value of $2,000 is presented by a cross bill which seeks to recover a balance of $1,700 due on a contract for the exchange of soda fountain apparatus, where the original bill, which was dismissed on complainant's own motion, asked for the cancelation of his agreement to pay $2,025 in consideration of the exchange. However, in this case it is not necessary to invoke the statutes further than to show that, by the law in force since 1846, at least, such rights as the plaintiff claims, and which, as is shown by the evidence, he and his predecessors in title have been exercising for forty years, have been recognized as private property. Such is the view of the leading case, decided in 1858 and acquiesced in, we believe, ever since. Haalelea v. Montgomery, 2 Hawaiian R. 62, 66. In the present instance the plaintiff claims under a royal patent, admitted to have been effective as to whatever, by its true construction, it purported to convey. This patent 3. describes the ahupuaa by metes and bounds, and then the granting clause goes on: "There is also attached to this land a fishing right in the adjoining sea, which is bounded as follows," again giving boundaries, and continuing: "The islands of Mokumoa, Mokuonini, and Mokuoco are a part of Moanalua, and are included in the Submitted March 21, 1904. Decided April above area." The description of what is intended to be conveyed could not be plainer. But the habendum is "to have and to hold the above granted land," and it is said that, as the fishery of an overlord or konohiki, unlike the rights of tenants, did not pass as an incident of land, but must be distinctly granted, the fishery was not included in the patent. Haalelea v. Montgomery, 2 Hawaiian Rep. 62, 71. Again, we must avoid being deceived by a form of words. We assume that a mere grant of the ahupuaa without mention of the fishery would not convey the fishery. But it does not follow that particular words are necessary to convey it when the intent is clear. When the descrip any tion of the land granted says that there is incident to it a definite right of fishery, it does not matter whether the statement is techni cally accurate or not; it is enough that the grant is its own dictionary and explains that it means by "land" in the habendum, land and fishery as well. There is no possibility of mistaking the intent of the patent. It declares that intent plainly on its face. There is no technical rule which overrides the expressed intent, like that of the common law, which requires the mention of heirs in order to convey a fee. We are of opinion that the patent did what it was meant to do, and therefore that the plaintiff is entitled to prevail. Judgment reversed. The jurisdiction of a Federal circuit court, once acquired on removal from a state court, cannot be devested by the dismissal of the bill on complainant's own motion after a cross bill has been filed, although the jurisdictional amount may no longer be in dispute. [No. 357.] 25, 1904. APPEAL from the circuit court of the United States for the Northern District of Texas to review a decree granting the relief sought by a cross complaint after dismissal of the original bill on complainant's own motion. On motion to dismiss or af firm, Affirmed. Statement by Mr. Chief Justice Fuller: Kirby filed his first original amended petition in the district court of Dallas county, Texas, against the American Soda Fountain Company, averring that he was induced by to exchange his soda fountain apparatus for false representations by defendant to agree the soda fountain apparatus of defendant, and pay defendant $2,025 in addition, and which, however, plaintiff alleged did not con signed a memorandum in relation thereto, tain all the terms of the contract; that the exchange was made, but defendant's soda fountain apparatus, instead of being superior in value by $2,025, was, as matter of fact, less by $2,500; and plaintiff prayed for the cancelation of the obligation to pay $2,025, for $2,500 damages, and for general relief. The original petition sought damages merely, and in the sum of $1,500. On application of defendant the cause was removed to the circuit court of the United States for the northern district of Texas. The case was entered in that court May 142 |