Where there are two statutes, the earlier special and the later
general, (the terms of the general being broad enough to include
the matter provided for in the special), the fact that the one is
special and the other is general creates a presumption that the
special is to be considered as remaining an exception to the
general, and the general will not be understood as repealing the
special unless a repeal is expressly named, or unless the
provisions of the general are manifestly inconsistent with those of
the special.
Page 185 U. S. 84
Section 7 of the Act of March 3, 1899, c. 413, 30 Stat. 1004, in
effect abolishes the rank of Commodore, at least as far as respects
the active list of the line of the Navy, and lifts those in that
rank to that of rear admiral. Clearly that was a special provision
in respect to which the attention of Congress was at the time
directed, and when, in section 13, Congress prescribed a general
rule for the salaries of naval officers, such general rule cannot
be understood as repealing that special provision.
That section fixed the amount of the salary, but did not affect
any general provisions of law affecting a difference between salary
while at sea and while on shore.
This is an appeal from the Court of Claims. The claimant,
Frederick Rodgers, a rear admiral of the line of the Navy, brought
suit to recover the sum of $3,358, 13, which he claims as the
balance due him on account of pay and allowances for the period
between March 3, 1899, and March 2, 1901. The claim is founded upon
the law of Congress known as the "Navy Personnel Act," which was
approved on March 3, 1899, and entitled "An Act to Reorganize and
Increase the Efficiency of the Personnel of the Navy and Marine
Corps of the United States." 30 Stat. 1004.
The applicable sections are seven and thirteen, which, omitting
irrelevant portions, read:
"SEC. 7. That the active list of the line of the Navy, as
constituted by section one of this act, shall be composed of
eighteen rear admirals, seventy captains, one hundred and twelve
commanders, one hundred and seventy lieutenant commanders, three
hundred lieutenants, commanders, three hundred lieutenants, three
hundred and fifty lieutenants (junior grade) and ensigns:
Provided, That each rear admiral embraced in the nine
lower numbers of that grade shall receive the same pay and
allowance as are now allowed a brigadier general in the Army.
Officers, after performing three years' service in the grade of
ensign, shall, after passing the examinations now required by law,
be eligible to promotion to the grade of lieutenant (junior grade):
Provided, That when the office of chief of bureau is
filled by an officer below the rank of rear admiral, said officers
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:
And provided further, That
nothing
Page 185 U. S. 85
contained in this section shall be construed to prevent the
retirement of officers who now have the rank or relative rank of
commodore with the rank and pay of that grade. . . ."
"SEC. 13. That, after June thirtieth, 1899, commissioned
officers of the line of the Navy and of the Medical and Pay Corps
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;
Provided, That such
officers, when on shore, shall receive the allowances, but fifteen
percentum less pay than when on sea duty; but this provision shall
not apply to warrant officers commissioned under section twelve of
this act:
Provided further that when naval officers are
detailed for shore duty beyond seas, they shall receive the same
pay and allowances as are or may be provided by or in pursuance of
law for officers of the Army detailed for duty in similar places. .
. .
And provided further that no provision of this act
shall operate to reduce the present pay of any commissioned officer
now in the Navy, and in any case in which the pay of such an
officer would otherwise be reduced, he shall continue to receive
pay according to existing law:
And provided further that
nothing in this act shall operate to increase or reduce the pay of
any officer now on the retired list of the Navy."
By section 1466 of the Revised Statutes of the United States, it
was, among other things, provided:
"SEC. 1466. 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:"
"
* * * *"
"Rear admirals with major generals."
"Commodores with brigadier generals."
"Captains with colonels."
The findings show that the claimant was appointed and
commissioned a rear admiral on March 3, 1899. From that date until
March 2, 1901, he was one of the rear admirals "embraced in the
nine lower numbers of that grade." He served on shore from March 3,
1899, to February 13, 1901, and for the rest of the time at sea.
While at sea, he received the same pay as was
Page 185 U. S. 86
"allowed a brigadier general in the Army," and while on shore,
he received pay at the same rate less fifteen percent, together
with commutation in lieu of allowance of quarters. Judgment was
rendered in favor of the United States, 36 Ct.Cl. 266, from which
judgment the claimant took this appeal.
MR. JUSTICE BREWER delivered the opinion 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 conditions of this legislation make perfectly
clear the intent of Congress. If we look alone upon section 13, we
may well conclude that Congress had one thought in its mind, while
if we turn to section 7 another and somewhat different intent is
apparent. Section 13 suggests 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
Page 185 U. S. 87
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 first 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 section 7 establishes a complete but temporary rule for
the payment of the nine lower members of the grade of rear admiral;
that no provisions of other sections of this statute, or of any
other statute, limit or qualify the right of the nine junior rear
admirals to the full pay given by statute to a brigadier general.
On the other hand, the government contends that the proviso is
subject to the general rule which obtains in respect to all other
naval officers, of a fifteen percent difference between the pay
when on shore duty and that when at sea. Again, the claimant
insists that, by section 13, after the 30th 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 section 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 provision, and did not cease to have
force on the 30th of June, 1899.
It is a canon of statutory construction that a later statute
general in its terms and nor expressly repealing a prior special
statute 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 include the matter provided for in the special --
the fact that the one is special and the other is general creates a
presumption that the special is to be considered as remaining
Page 185 U. S. 88
an exception to the general, and the general will not be
understood as repealing the special unless a repeal is expressly
named or unless the provisions of the general are manifestly
inconsistent with those of the special. In
Ex Parte Crow
Dog, 109 U. S. 556,
109 U. S. 570,
this Court said:
"The language of the exception is special and express; the words
relied on as a repeal are general and inconclusive. The rule is
generalia specialibus non derogant. 'The general principle
to be applied,' said Bovill, C.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 construed to repeal a previous particular act unless
there is some express reference to the 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 v. Champenys, 30
L.J.N.S.Eq. 782, 2 Hohns. & Hem. 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 a subject in general
terms and not expressly contradicting the provisions of a prior
special statute is not to be considered as intended to affect the
more particular and specific provisions of the earlier act unless
it is absolutely necessary so to construe it in order to give its
words any meaning at all."
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
Page 185 U. S. 89
contradicting the original act, shall not be considered as
intended to affect the more particular or positive previous
provisions unless 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 city many
supporting authorities.
In the light of this canon, how should these two sections be
construed? Section 7 in effect abolishes the rank of commodore, at
least so far as respects the active list of the line of the Navy,
and lifts those in that rank to that of rear admiral. The attention
of Congress was thus directed to such change and the proper
accompanying provisions in respect to salary and otherwise, and it
declared that the lower nine rear admirals, they who were by the
section lifted to that rank, should receive a particular salary.
Clearly that was a special provision in respect to a matter to
which the attention of Congress was at the time directed. If
another statute had been passed at a subsequent or on the same day
making general provision for the salaries of naval officers,
clearly the canon to which we have referred would apply.
A
fortiori, when the subsequent general provision is in the same
statute, it should be held applicable. So when, in section 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.
Page 185 U. S. 90
But it is said that harmony between the two may be obtained by
limiting the operation of the special provision to the period
between the passage of the act and the 30th of June following. But
that necessitates adding something to the words of the special
provision, so that it shall read that from the 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.
It is urged that the provision in section 7 was intended to
merely fill out the present fiscal 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 general, commodore, and
brigadier general, captain, and colonel. By that act, the rank of
commodore was abolished, although that of brigadier general was
undisturbed. No change was made in the relative rank of captain and
colonel, or of rear admiral and major general, but the legislation
left one rank in the Army to which there was no corresponding rank
in the Navy. The statute in effect lifted the rank in the Navy
which was corresponding to
Page 185 U. S. 91
that of brigadier general in the Army to that of rear admiral,
and corresponding with that of major general in the Army. 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 official 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 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 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?
Still another matter may be mentioned. The second proviso of
section 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."
There is no similar clause in section 13. Why should Congress,
in section 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
generally and permanently? Is it not reasonable to believe that
Congress intended this as a special provision
Page 185 U. S. 92
which should continue after the 30th of June, 1899, and as a
permanent 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 section 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."
The further question is whether the provision in section 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 section 13, when it is not in terms excluded
in section 7, it would be going too far to hold it inapplicable to
the salary provided for by section 7. In other words, it is not to
be believed that Congress by that section carved out a salary which
in all respects ignored the general rules pertaining to salaries of
naval officers. It is rather to be believed that only the amount
was fixed, and that otherwise it was to be in harmony with and
subordinate to any and all general provisions. We are of opinion
that the Court of Claims was right in its conclusions in this
respect.
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
Page 185 U. S. 93
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.
